REPORTABLEIN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO.1950 OF 2009
Sampath Kumar ...Appellant
Versus
Inspector of Police, Krishnagiri ...Respondent
(With Crl. Appeal No. 66/2010 and Crl. Appeal No.1205/2010)
J U D G M E N T
T.S. THAKUR, J.
1. These appeals by special leave call in question the
correctness of an order dated 30th April 2009 passed by the High
Court of Madras, whereby Criminal Appeal No. 1008 of 2007 filed
by the appellants against their conviction under Section 302 read
with Section 34 IPC has been dismissed and the sentence of
imprisonment for life awarded to them by the trial Court upheld.
2. Briefly stated, the prosecution case is as under:
The appellants, namely, Shanmugam, Velu and Sampath
Kumar were close friends of the deceased-Senthil Kumar and
Palani (PW7). Appellant-Velu has a younger sister, named, Usha
who, according to the prosecution story, had fallen in love with
the deceased-Senthil Kumar and wanted to marry him.
Appellant-Velu did not approve of the said relationship and had
asked appellant-Shanmugan to convey to the deceased-Senthil
Kumar to keep off Usha or else he would break his hands and
legs. In July 2002, appellant-Velu appears to have come on leave
from his army services and during this period he and his mother-
Balammal are said to have informed Murugambal (PW2)- mother
of the deceased, sister-Lakshmi (PW3) and her husband-Selvam
(PW1) that they had decided to give Usha in marriage to the
deceased-Senthil Kumar. Further discussion regarding the
marriage was, however, deferred till the passing of the Tamil
month Adi, considered inauspicious for finalisation of matrimonial
alliance. On 27th July, 2002 i.e. two days after the marriage
proposal was made, Ramesh (PW9) was employed to paint the
house of Lakshmi (PW3) when he saw the deceased-Senthil
Kumar and Usha embracing one another in one of the rooms of
the house. According to Ramesh (PW9), even the appellant-
Shanmugam saw Usha and Senthil Kumar in a romantic embrace.
The appellant-Shanmugam was also, according to the
prosecution, one of the suitors of Usha and had a one-sided
affection for her. On the following day, i.e. 28th July, 2002 PWs.
1 to 3, their neighbour and the appellant-Shanmugam went to a
theatre to see a movie and retuned home around 9.30 p.m. While
Selvam (PW1), Murugambal (PW2) and Lakshmi (PW3) retired to
bed inside the house after dinner, the deceased-Senthil Kumar
and Palani (PW7) slept as usual in the verandah of the house.
The appellant-Shanmugam also used to sleep with them but for
some reason he did not turn up to do so on that day. At about
2.45 a.m. on the night intervening 28th and 29th July, 2002, Palani
(PW7) heard the sound of a stone being thrown. He woke up to
see the appellant-Shanmugam standing near the head of the
deceased and the remaining two appellants also standing close
by. The prosecution case is that Palani (PW7) was threatened by
the appellants not to disclose to anyone regarding anything for
otherwise they would kill him also. At this, Palani (PW7) shouted
and ran to hide himself on the rear side of the house. In the
meantime, PWs 1 to 3 who were sleeping inside the house also
awoke upon hearing the noise and started shouting for help. This
woke up their neighbour (PW8) in the opposite house who went
over to the house and opened the door to help them come out.
PWs 1 and 8 then went to the rear side of the house to find the
appellant-Shanmugam lying beside a plantain tree with his hands
tied with a cloth.
It was also noticed on removing the blanket covering the
deceased that someone had smashed his head with a stone which
was lying at his side. When the appellant-Shanmugam was asked
as to who had beaten him and thrown him behind the house, he
stated that it was some stranger who had done so. Senthil was
rushed to the hospital but died en-route. Selvam (PW1) went to
the police station and lodged an oral complaint. The police
registered a case under Sections 302 and 324 IPC.
3. After completion of the investigation the police filed a
charge-sheet against the appellants accusing them of committing
the murder of Senthil Kumar. The appellants were then
committed to the Sessions Judge, where they pleaded not guilty
and claimed trial. At the trial the prosecution examined as many
as 18 witnesses to prove its case. The Sessions Judge eventually
came to the conclusion that the prosecution had proved its case
beyond a reasonable doubt and accordingly convicted the
appellants for the murder of the deceased-Senthil Kumar and
sentenced them to undergo imprisonment for life under Section
302 read with Section 34 IPC. They were also sentenced to pay a
fine of Rs.2,000/- each and in default of payment of fine, to
undergo further rigorous imprisonment for two years. The
Sessions Judge based his conviction primarily on the strong
motive which appellants Shanmugam and Velu had to do away
with the deceased due to his love affair with Usha. The Sessions
Judge relied heavily upon the deposition of Palani (PW7) and the
letter Exh. P-22 allegedly written by appellant-Shanmugam to the
mother of the deceased, Murugambal (PW2) accusing appellant-
Velu to be the person responsible for the death of the deceased.
4. Aggrieved by their conviction and sentence imposed upon
them, the accused person preferred Criminal Appeal
No.1008/2007 before the High Court of Madras which appeal has
been dismissed thereby confirming the conviction and sentence
recorded by the trial Court. The High Court held that while the
deposition of Palani (PW7) was reliable, letter Exh. P-22 allegedly
written by the appellant-Shanmugam to the mother of the
deceased, Murugambal (PW2) was not. The confessional
statement was held to be inadmissible having been produced
after the statement of the accused persons had been recorded
under Section 313 Cr.P.C. Independent of the said document, the
High Court felt that the evidence on record formed a complete
chain of circumstances that unerringly pointed to the guilt of the
appellants. The present appeals assail the correctness of the said
judgment as noticed above.
5. Mr. K. Kanagaraj, learned senior counsel for the appellant
strenuously argued that the trial Court as also the High Court had
fallen in error in holding that the charge against the appellants
had been proved beyond a reasonable doubt. He urged that the
entire case was based on circumstantial evidence and that the
courts below had failed to keep in view the legal requirements
attracted to cases that are based on circumstantial evidence. He
further argued that the deposition of Palani (PW7) was not
reliable for reasons more than one and the trial Court as also the
High Court had committed an error in ignoring those reasons.
The fact that there was a motive, assuming that any such motive
had been established in the present case, was also not sufficient
by itself to justify the conclusion that the appellants were
responsible for the murder of the deceased.
6. The legal position regarding the standard of proof and the
test which the circumstantial evidence must satisfy is well-settled
by a long line of decisions of this Court. It is unnecessary to
burden this judgment by making reference to all such decisions.
We are content with reference to some of those decisions. In
Sharad Birdhichand Sarda v. State of Maharashtra (1984)
4 SCC 116, this Court laid down the following five tests to be
satisfied in a case based on circumstantial evidence:
"(1) The circumstances from which the conclusion of guilt is to
be drawn should be fully established.
(2) The facts so established should be consistent only with the
hypothesis of the guilt of the accused, that is to say, they
should not be explainable on any other hypothesis except that
the accused is guilty.
(3) The circumstances should be of a conclusive nature and
tendency.
(4) They should exclude every possible hypothesis except the
one to be proved, and
(5) There must be a chain of evidence so complete as not to
leave any reasonable ground for the conclusion consistent
with the innocence of the accused and must show that in all
human probability the act must have been done by the
accused."
7. The decision of this Court in Aftab Ahmad Ansari v.
State of Uttaranchal (2010) 2 SCC 583 is a timely reminder
of the abovementioned requirements in the following words:
"In cases where evidence is of a circumstantial nature, the
circumstances from which the conclusion of guilt is to be
drawn should, in the first instance, be fully established. Each
fact must be proved individually and only thereafter the court
should consider the total cumulative effect of all the proved
facts, each one of which reinforces the conclusion of the guilt.
If the combined effect of all the facts taken together is
conclusive in establishing the guilt of the accused, the
conviction would be justified even though it may be that one
or more of these facts, by itself/themselves, is/are not
decisive. The circumstances proved should be such as to
exclude every hypothesis except the one sought to be proved.
But this does not mean that before the prosecution case
succeeds in a case of circumstantial evidence alone, it must
exclude each and every hypothesis suggested by the accused,
howsoever extravagant and fanciful it might be."
8. Coming to the facts of the present case, the prosecution
relies entirely upon the deposition of PWs. 1, 2, 3 and 7. Of
these depositions PWs. 1, 2 and 3 are not admittedly eye-
witnesses to the occurrence, nor have they stated anything
against the appellants except that the deceased was fond of Usha
and wanted to marry her which was not to the liking of her
brother-Velu, the appellant before us. It is only the deposition of
Palani (PW7) that holds the key to whether the appellants are
guilty or innocent. According to this witness who was sleeping
with the deceased in the verandah of the house of PWs 1 to 3, at
about 2.45 a.m. at night he heard a sound that woke him up. He
also noticed the appellants standing near the deceased.
According to the witness, the appellants threatened him not to
disclose anything to anyone otherwise he would meet the same
fate. The witness, however, made no disclosure to PWs. 1, 2 and
3 who were inside the house, even when they had been woken
up because of the sound and wanted to come out but could not
because the door was bolted from outside. He made no
disclosure of what he had seen even after the police had arrived
at the scene after the registration of the case. In his statement
before the police under Section 161 Cr.P.C., Palani (PW7) made
no such accusations against the appellants nor did he disclose to
anyone that he had seen the accused persons on the spot around
the time of the commission of the offence. It was only five years
after the occurrence that the witness for the first time disclosed
in the Court the story about his having seen the appellants
standing near the deceased when the former woke up on account
of the noise of a stone falling hard on the ground. The witness
did not offer any explanation, much less a cogent and acceptable
one for his silence for such a long period. His assertion that he
was scared by the appellants even after they had been taken into
custody by the police and, therefore, did not reveal anything
about the actual events till he had the courage to come to the
Court to make a statement, is hard to believe. At any rate,
reliance upon the deposition of a witness who has made such a
material improvement in his version is wholly unsafe unless it is
corroborated by some other independent evidence that may
probabilize his version.
9. In Narayan Chetanram Chaudhary & Anr. v. State of
Maharashtra (AIR 2000 SC 3352), this Court held that while
discrepancies in the testimony of a witness which may be caused
by memory lapses were acceptable, contradictions in the
testimony were not. This Court observed:
"Only such omissions which amount to contradiction in
material particulars can be used to discredit the testimony of
the witness. The omission in the police statement by itself
would not necessarily render the testimony of witness
unreliable. When the version given by the witness in the Court
is different in material particulars from that disclosed in his
earlier statements, the case of the prosecution become
doubtful and not otherwise. Minor contradictions are bound to
appear in the statements of truthful witnesses as memory
sometimes plays false and the sense of observation differ
from person to person."
10. The difference between discrepancies and contradictions
was explained by this Court in State of Himachal Pradesh v.
Lekh Raj and Anr. (AIR 1999 SC 3916). Reference may also
be made to the decision of this Court in State of Haryana v.
Gurdial Singh & Pargat Singh (AIR 1974 SC 1871), where
the prosecution witness had come out with two inconsistent
versions of the occurrence. One of these versions was given in
the Court while the other was contained in the statement made
before the Police. This Court held that these are contradictory
versions on which the conclusion of fact could not be safely
based. This Court observed:
"The present is a case wherein the prosecution witnesses have
come out with two inconsistent versions of the occurrence.
One version of the occurrence is contained in the evidence of
the witnesses in court, while the other version is contained in
their statements made before the police...In view of these
contradictory versions, the High Court, in our opinion, rightly
came to the conclusion that the conviction of the accused
could not be sustained."
11. Reference may also be made to the decision of this Court
in Kehar Singh and Ors. v. State (Delhi Administration) AIR
1988 SC 1883. This Court held that if the discrepancies between
the first version and the evidence in Court were material, it was
safer to err in acquitting than in convicting the accused.
12. In the present case the statement made by Palani (PW7)
is in complete contrast with the statement made by him before
the Police where the witness stated nothing about having seen
the appellants standing near the deceased around the time of the
incident. This omission is of very vital character. What affects
the credibility of the witness is that he did not in his version to
the police come out with what according him is the truth, but
withheld it for a period of five years till he was examined as a
prosecution witness in the Court. This Court in Vadivelu Thevar
v. The State of Madras (AIR 1957 SC 614) classified
witnesses into three categories, namely, (i) those that are wholly
reliable, (ii) those that are wholly unreliable and (iii) who are
neither wholly reliable nor wholly unreliable. In the case of the
first category the Courts have no difficulty in coming to the
conclusion either way. It can convict or acquit the accused on the
deposition of a single witness if it is found to be fully reliable. In
the second category also there is no difficulty in arriving at an
appropriate conclusion for there is no question of placing any
reliance upon the deposition of a wholly unreliable witness. It is
only in the case of witnesses who are neither wholly reliable nor
wholly unreliable that the Courts have to be circumspect and
have to look for corroboration in material particulars by reliable
testimony direct or circumstantial.
13. To the same effect is the decision of this Court in Lallu
Manjhi v. State of Jharkhand, (AIR 2003 SC 854) where this
Court felt that the testimony of the witness Mannu (PW9) could
neither be totally discarded nor implicitly accepted. Mannu was a
witness who could have been naturally present with his brother
while ploughing the field. However, his testimony was found to
have been improved substantially at the trial. He was considered
neither wholly reliable nor wholly unreliable.
14. In the present case the testimony cannot be wholly
reliable or wholly unreliable. He is not a chance witness who had
no reason to be found near the deceased at the time of the
occurrence. There is evidence to show that Palani (PW7) used to
sleep with the deceased-Senthil in the verandah of the house.
What makes it suspect is that the witness has, despite being a
natural witness, made a substantial improvement in the version
without their being any acceptable explanation for his silence in
regard to the fact and matters which was in his knowledge and
which would make all the difference in the case. The Court would,
therefore, look for independent corroboration to his version,
which corroboration is not forthcoming. All that is brought on
record by the prosecution is the presence of a strong motive but
that by itself is not enough to support a conviction especially in a
case where the sentence can be capital punishment. In N.J.
Suraj v. State represented by Inspector of Police (2004)
11 SCC 346, the prosecution case was based entirely upon
circumstantial evidence and a motive. Having discussed the
circumstances relied upon by the prosecution, this Court rejected
motive which was the only remaining circumstance relied upon by
the prosecution stating that the presence of a motive was not
enough for supporting a conviction, for it is well-settled that the
chain of circumstances should be such as to lead to an irresistible
conclusion, that is incompatible with the innocence of the
accused. To the same effect is the decision of this Court in
Santosh Kumar Singh v. State through CBI. (2010) 9 SCC
747 and Rukia Begum v. State of Karnataka AIR 2011 SC
1585 where this Court held that motive alone in the absence of
any other circumstantial evidence would not be sufficient to
convict the appellant. Reference may also be made to the
decision of this Court in Sunil Rai @ Paua and Ors. v. Union
Territory, Chandigarh (AIR 2011 SC 2545). This Court
explained the legal position as follows :
"In any event, motive alone can hardly be a ground for
conviction. On the materials on record, there may be some
suspicion against the accused but as is often said suspicion,
howsoever, strong cannot take the place of proof."
15. Suffice it to say although, according to the appellants the
question of the appellant-Velu having the motive to harm the
deceased-Senthil for falling in love with his sister, Usha did not
survive once the family had decided to offer Usha in matrimony
to the deceased-Senthil. Yet even assuming that the appellant-
Velu had not reconciled to the idea of Usha getting married to the
deceased-Senthil, all that can be said was that the appellant-Velu
had a motive for physically harming the deceased. That may be
an important circumstance in a case based on circumstantial
evidence but cannot take the place of conclusive proof that the
person concerned was the author of the crime. One could even
say that the presence of motive in the facts and circumstances of
the case creates a strong suspicion against the appellant but
suspicion, howsoever strong, also cannot be a substitute for proof
of the guilt of the accused beyond a reasonable doubt.
16. In the totality of the circumstances, we are of the view
that the prosecution has not proved its case against the
appellants who are, in our opinion, entitled to acquittal giving
them the benefit of doubt. In the result, these appeals succeed
and are hereby allowed. The appellants shall stand acquitted of
the charges framed against them giving them the benefit of
doubt.
..........................................J.
(T.S. THAKUR)
..........................................J.
(GYAN SUDHA MISRA)
New Delhi
March 2, 2012
